Ejectment.-Addenda. 109. If a surety for a consignee on a custom-the court to leave any questions undecided house bond pays the debt, he has no remedy which fairly arise on the record, or to decide the against the owner for the amount, if the latter cause on points of minor importance only, the did not request the surety to sign the bond; but value of the premises would justify future liti the remedy for the surety is against the con- gation; which no court of chancery might think signee only. Knox v. Devens, 5 Mason's C. C. proper to enjoin, so long as new and material facts could be developed, or pertinent points of law remain unsettled. Strother v. Lucas, 12 Peters, 410. R. 380 93. If a collector of the customs cancels a bond for duties, without receiving payment of the amount of duties, in connivance with the debtor, the cancellation is void, and the bond may still be declared upon as a subsisting deed; for the cancellation is, in such case, a flagrant violation of duty. Johnson, in Error, v. The United States, 5 Mason's C. C. R. 425. 94. A collector of the customs is not at liberty to receive anything but money of the United States, or foreign gold or silver coin, made current in payment of duties. If he receives a check on bank, in payment, it is at his own peril; and if the check is not paid, the bond is not discharged: a fortiori, it is not discharged by the receipt of a memorandum check. Ibid. EJECTMENT. See ACTION OF EJECTMENT, ante, page 65. Addenda. 1. As there is no court of chancery, under the laws of Pennsylvania, an action of ejectment is Sustained on an equitable title. Lessee of Swayze and Wife v. Burke et al., 12 Peters, 11. 2. Ejectment for two lots of ground, St. Louis, Missouri. The plaintiff had brought an ejectment, which was before the court, on a writ of error, in 1832; and the judgment, in favour of the defendant, was affirmed. He afterwards brought another action of ejectment for the same land. By the court:-Had this case been identical with the former, as to the merits, we should have followed the deliberate opinion delivered therein: but as one judgment is not conclusive on the right of either possession or property in the premises in controversy, the plaintiff has a right to bring a new suit; and the court must consider the case, even if it is in all respects identical with the former, though they may hold it to be decided by the opinion therein given. It is otherwise where the second case presents a plaintiff's or defendant's right, on matters of law or fact, material to its decision, not before appearing in the record: it then becomes the duty of the court to decide all pertinent questions arising on the record, in the same manner as if the case came before them for the first time, save such as arise on evidence identical as to the merits. In this case, it is a peculiar duty enjoined upon us by the nature of the case, the course of the able and learned arguments as to the laws of Spain and her colonies, in their bearing on the interesting question before us, together with a view of the consequences of our final decision thereon. Were 3. In an action of ejectment, the day of the ouster need not be alleged; and it is sufficient if it is laid after the demise. Woodward v. Brown et al., 13 Peters, 1. 4. The specific date under a videlicet is not necessary in a declaration of ejectment, and may be rejected as surplusage, if it sufficiently appear on the face of the declaration that the ouster was after the entry under the several demises. Ibid. 5. The rule is well established, that when the right of entry is by ouster of the title of the wife, the demise may be laid in the name of the husband, or in the names of the husband and wife. Ibid. 6. In a declaration in ejectment, various demises were laid; and the verdict of this jury, and the judgment of the circuit court, were entered on one of the demises only; and it was contended that the court ought not to have entered a judgment on the issue found for the plaintiff, but should have awarded a venire de novo; and that this irregularity might be taken advantage of upon a writ of error. Held, that if this objection had been made in the circuit court, on a motion in arrest of judgment, the plaintiff would have been permitted to strike out all the demises from the declaration, but that on which the verdict was given. The omis sion to strike out these demises was only, therefore, an omission of form; and the act of congress of 1789, ch. 20, sec. 32, expressly provides that no judgment shall be reversed for any defect or want of form; but that the courts of the United States shall proceed and give judgment, according as the right of the cause and matter in law shall appear to them, without regarding any imperfections, defects, or want of form in the judgment or course of proceeding, except that specially demurred to. Van Ness v. The Bank of the United States, 13 Peters, 17. 7. In an action of ejectment, the defendants having entered into the consent rule, the plaintiff in Ohio is not to be called upon to prove the calls of the patent under which he claims on the ground of establishing the different corners. The defendants are bound to admit, after they have entered into the consent rule, that they are in possession of the premises claimed by the lessor of the plaintiff. Games et al. v. The Lessee of Dunn, 14 Peters, 322. 8. The judgment in ejectment was entered in 1818, and writ of possession issued in 1829, on which the tenant was turned out of possession; he was restored by writ of restitution. Lessee of Smith v. Trabue's Heirs, 1 M'Lean, 88. 9. In Kentucky, a judgment in ejectment does not stop the running of the statute. Ibid. Elegit.-Emancipation of Slaves.-Embargo and Non-Intercourse. 11. But this should not be done without notice to the tenant. Ibid. 12. The plaintiff sought to recover land lying in the state of Kentucky, claiming title under the heirs of James Reynolds, the original patentee of the tract; two of the heirs, daughters of James Reynolds, were femes covert, with whom their husband's had joined in the action. It was necessary to prove that the marriages of the femes covert took place before the action was brought. Garrard v. The Lessee of Reynolds et al., 4 Howard, 123. See PRACTICE. 10. The demise may be extended after judg-ejectment is brought within reasonable time ment. Ledgerwood et al. v. Picket's Heirs, 1 from the service of the writ of elegit, it may M'Lean, 144. amount to prima facie evidence that the possession, at the institution of the suit, was originally adversary, and the creditor may be entitled to hold over; yet, in this case, the creditor having postponed assertion of claim for five years, the acquiescence in the possession of the heirs must be inferred; and that the purchasers are not responsible for the profits which accrued during the time that the lands were held by the heirs, with the acquiescence of the elegit creditor. They are liable only for the profits accruing during the unexpired term. 2. That the occupation of the extended lands by the infants, must be considered as an occupation under an implied contract which the guardian had a right to make for them; and that the perception of profits by him is, in this suit, to be considered as a perception by them. 3. That the power of the guardian over his wards' estate, enabled him to bind the land conveyed in the deed of the 28th January, 1806, to the extent of the estimated value of the lands bound by the elegit, during the period for which those lands remained in the possession of the infant heirs, with the consent of the elegit creditor. Ibid. ELEGIT. 1. It is the well settled modern practice, that the officer who executes a writ of elegit does not put the creditor in actual possession of the land, but gives him only a legal possession, which he must enforce by ejectment. If the actual possession be withheld by the owner of the land, without the fault of the tenant by ele. git, he will have a right to hold over, after he acquires actual possession, for the period during which his debtor held the adverse possession; but if, from the act of the creditor himself, or a third party, the rents and profits of the extended lands be not received, the creditor cannot hold over; but his estate expires when his debt might have been satisfied. Ronald's Heirs v. Barkley et al., 1 Brockenb. C. C. R. 356. EMANCIPATION OF SLAVES. 1. Virginia. Under the statute of Virginia, emancipating slaves brought into the state in 1792, unless the owner removing with them should take a certain oath within sixty days after such removal; the fact of the oath having been taken may be presumed after the lapse of twenty years, accompanied with possession. Mason et al. v. Matilda et al., 12 Wheat. 590; 6 Cond. Rep. 655. EMBARGO AND NON-INTERCOURSE. 2. A judgment was obtained in 1799 against two infant heirs; and in August, 1800, a writ of elegit was sued out on this judgment, and executed on lands and personalties of the infants. The heirs retained possession of the land about five years, when ejectment was brought by the tenant by elegit, to reduce them into his possession. The guardian of the infants, in the meantime, had been in perception of the profits; and had, for the most part, failed to apply them in discharge of the debt for which the lands were extended. In 1807, the extended lands were sold under a decree, at the suit of other creditors, subject to the elegit. In 1805, the ejectment was brought by the elegit creditor; and pending that suit, viz., on the 28th January, 1806, the guardian of the infants conveyed a tract of land which he had purchased with the funds of the infants, and for their use, in trust, to secure the debt due to the elegit creditor, and in exoneration of the lien created by the elegit; and the ejectment was dismissed. The guardian had purchased the land conveyed by him in 2. Subsequent to the execution of the bond, trust, at a sale made by commissioners of the on the 9th of January, 1809, congress passed a court of chancery, but the legal title was not supplement to the embargo law, by which other conveyed to him; and, in the trust deed, the and additional penalties were imposed, and the rights under the elegit were reserved until a circumstances under which the obligor in any legal title could be made. A suit being brought bond given under the act of the 22d of Decemby the heirs to compel a conveyance to their ber, 1807, could obtain relief, were changed. guardian, in trust, discharged of that incum-The court said, they would never consider the orance; it was held, 1. That although, where | latter act as applying to previous facts, unless 1. Where a vessel had been driven by stress of weather into a port in the West Indies, while proceeding for Portland, in Maine, and there detained by the government of the place; this was such a casualty as came within the exception of "danger of the seas," in the condition of an embargo bond, dated the 29th of December, 1807, taken in pursuance of the act of congress of the 22d of December, 1807. United States v. Hall and Worth, 6 Cranch, 171; 2 Cond. Rep. 340. Embargo and Non-Intercourse. such construction should be absolutely unavoid- | she might land her cargo. The Brig Penobscot v. able. Ibid. The United States, 7 Cranch, 356; 2 Cond. Rep. 528. 3. In an action of debt for the penalty of an embargo bond, it is a good plea, under the act of congress of the 12th of March, 1808, sec. 3, that the party was prevented from relanding the goods in the United States by unavoidable accident, Durousseau v. The United States, 6 Cranch, 307; 2 Cond. Rep. 380. 4. It was no offence against the embargo law to take goods out of one vessel and put them into another in the port of Baltimore, unless it be with an intent to export them. Ibid. 5. The evidence of that necessity which will excuse a violation of the embargo laws must be very clear and positive. Brig James Wells v. The United States, 7 Cranch, 21; 2 Cond, Rep. 402. 12. Wines, the produce of France, imported into the United States before the non-intercourse act, re-exported to a Danish island, there sold to a merchant of that place, and thence exported to New Orleans during the operation of that act of congress, were liable to forfeiture under that law. The Schooner Hoppet v. The United States, 7 Cranch, 389; 2 Cond. Rep. 342. 13. The non-intercourse act of March 1st, 1809, was in force between the 2d of February, and 2d of March, 1811, by virtue of the presi dent's proclamation of November 2d, 1810. Schooner Anne v. The United States, 7 Cranch, 570; 2 Cond. Rep. 611. 6. The departure of a vessel from the wharf 14. By the eleventh section of the act of the of a port, and proceeding a mile and a half 25th of April, 1808, the collector had no right to therefrom, with intent to go to sea, is not a de-detain a vessel and cargo after her arrival at her parture from the port, within the meaning of the third section of the supplementary embargo act of January 9th, 1808, if the vessel had not actually gone out of the port before seizure. Sloop Active v. The United States, 7 Cranch, 100; 2 Cond. Rep. 431. port of destination, under a suspicion that she intended to violate the embargo, and such detention could not be justified by instructions from the secretary of the treasury, nor by the confirmation of the president. Otis v. Bacon, 7 Cranch, 589; 2 Cond. Rep. 618. 7. A licensed fishing vessel is liable to for- 15. Under the eleventh section of the emfeiture, under the thirty-second section of the bargo act of 25th April, 1808, the collector was act of the 18th of February, 1793, for enrolling justified in detaining a vessel by his honest opiand licensing vessels, for sailing, laden with nion that there was an intention to violate or goods, with intent to carry them to another evade the provisions of the embargo laws. It place, without a license therefor; although the was not necessary for him to show that his susgoods are wholly of domestic growth and manu-picion was reasonable. Crowell et al. v. M'Faden, facture, and not liable to any duty. But such 8 Cranch, 94; 3 Cond. Rep. 48. cargo is not liable to forfeiture, unless it belong to the master, owner, or a mariner of the vessel. Ibid. 8. A vessel which has proceeded to a foreign port, contrary to the embargo act of January 9th, 1808, is liable to be seized upon her return, although that act gives a penalty of double her value in case she should not be seized. The United States v. The Brig Eliza, 7 Cranch, 113; 2 Cond. Rep. 437. 9. Upon an indictment under the non-intercourse laws for putting goods on board a carriage, with intent to transport them out of the United States, contrary to the act of January 9th, 1809, the punishment of which offence is a fine of four times the value of the goods, it is not necessary that the jury should find the value of the goods. United States v. John Tyler, 7 Cranch, 285; 2 Cond. Rep. 492. 10. A merchant vessel of the United States, captured as prize, condemned and sold, and afterwards purchased by her former master, a citizen of the United States, who obtained a Danish burgher's brief, and who cleared out of a port of the United States, as a Dane, is a foreign vessel within the fifth section of the act of the 9th of January, 1808, supplementary to the embargo act, although the purchaser was yet a citizen of the United States. The Schooner Good Catharine v. The United States, 7 Cranch, 349; 2 Cond. Rep. 525. 16. A bond taken by virtue of the first section of the embargo law of January 9th, 1808, is not void, although taken by consent of parties after the vessel had sailed. Speake et al. v. The United States, 9 Cranch, 28; 3 Cond. Rep. 244. 17. The obligors are estopped to deny that the penalty of such a bond is double the true value of the vessel and cargo. Ibid. 18. The non-intercourse act of the 28th of June, 1809, which requires a vessel bound to a permitted port to give bond in double the amount of vessel and cargo not to go to a prohibited port, is applicable to a vessel sailing in ballast. The Ship Richmond v. The United States, 9 Cranch, 102; 3 Cond. Rep. 294. 19. Under the non-intercourse act of 1809, a vessel from Great Britain had a right to lay off the coast of the United States, to receive instructions from her owners in New York; and, if necessary, to drop anchor; and, in case of a storm, to make a harbour: and if prevented by a mutiny of her crew from putting out to sea again, she might wait in the waters of the United States for orders. The United States v. The Cargo of the Ship Fanny; Jennings, Master, 9 Cranch, 181; 3 Cond. Rep. 347. 20. Under the third section of the act of congress of the 28th of June, 1809, every vessel bound to a foreign permitted port was obliged to give a bond, with a condition not to proceed to any port with which commercial intercourse was not permitted, nor to trade with such port. The Edwards; Scott, Claimant, 1 Wheat. 261; 3 11. Under the non-intercourse law, a vessel, in March, 1811, had no right to come into the waters of the United States to inquire whether | Cond. Rep. 565. Embargo and Non-Intercourse. 271. 21. Under the third section of the embargo | demand of a permit to land a cargo, was merely act, of April 25th, 1808, ch. 170, a vessel is not colourable, this is not a termination of the voysubject to forfeiture for departing without a clear-age so as to preclude the right of detention. ance, unless she has departed out of port; pro- Otis v. Walter, 11 Wheat. 192; 6 Cond. Rep. ceeding from a wharf a mile and a half, intending to go to sea, but not having got out of the port before seizure, is not such a departure as the act intends. The Active v. United States, 7 Cranch, 100; 2 Cond. Rep. 431. 22. It seems that it is a good defence to an action, upon an embargo bond, that it was given for more than double the value of the vessel and cargo; and that the obligors were constrained to execute it, by the refusal of a clearance. The United States v. Gordon et al., 7 Cranch, 287; 2 Cond. Rep. 494. 23. An information in the admiralty, for a forfeiture, must contain a substantial statement of the offence. A general reference to the provisions of the embargo acts, or to the statute on which the proceeding is founded, is not sufficient. If the information be defective in this respect, the defect is not cured by the evidence of the facts omitted to be averred in the information. The Schooner Hoppet v. The United States, 7 Cranch, 389; 2 Cond. Rep. 542. 30. Under the fifth section of the embargo act of January 9, 1808, ch. 112, a foreign vessel means a vessel navigating under the flag of a foreign power; and not a vessel owned in whole or in part by foreigners domiciled in the United States. The Sally, 1 Gallis. C. C. R. 58. 31. A departure from any place within the jurisdictional limits of the United States, although such place be not within any port, is within the provisions of the embargo act of December 22, 1807, ch. 109. The Ann, 1 Gallis. C. C. R. 55. 32. A vessel which, during the existence of the embargo laws, departed from one port in the United States on a voyage to another, but was obliged from irresistible necessity to put into a foreign port and sell her cargo, was not guilty of a violation of those laws. The Brig William Gray, Paine's C. C. R. 16. 33. From a fair comparison of the different embargo acts with each other, it may be collected, that congress meant expressly to make such an instance of necessity an exception of the penal operation of those acts. Ibid. 34. The embargo law was passed 22d Decem 24. If a collector justify the detention of a vessel under the eleventh section of the embargo law of April 25, 1808, ch. 170; he need not show that his opinion was correct, nor that he used reasonable care and diligence in ascertain-ber, 1807. A vessel cleared out, and sailed from ing the facts upon which his opinion was founded. Otis v. Watkins, 9 Cranch, 339; 3 Cond. Rep. 424. 25. Under the eleventh section of the embargo act of April 25, 1808, ch. 174, no power is given to detain the cargo if separated from the vessel; and the owner had a right to take the cargo out of the vessel and dispose of it, and, in case of detention, to bring an action of replevin in a state court. Slocum v. Mayberry et al., 2 Wheat. 1; 4 Cond. Rep. 1. 26. In seizures under the embargo laws, the law itself is a sufficient justification to the seizing officer, where the discharge of duty is the real motive, and not the pretext for detention; and it is not necessary to show probable cause. Otis v. Walter, 2 Wheat. 18; 4 Cond. Rep. 10. 27. The embargo act of April 25, 1808, ch. 170, related only to vessels ostensibly bound to some port in the United States; and a seizure after the termination of the voyage, was justifiable. Ibid. 28. Under the embargo act of December 22, 1807, ch. 109, the words "an embargo shall be laid" not only imposed upon the public officers the duty of preventing the departure of registered or sea-lettered vessels on a foreign voyage, but consequently rendered them liable to forfeiture under the supplementary act of January 9, 1808, ch. 12. In such case, if the vessel be actually and bona fide carried by force to a foreign port, she is not liable to forfeiture. The William King, 2 Wheat. 148; 4 Cond. Rep. 71. 29. Under the embargo act of April 25, 1808, ch. 170, if a vessel not actually arriving at her port of original destination, excites an honest suspicion in the mind of the collector, that her St. Mary's, Georgia, on the 15th January; and in the evening the collector received the information of the passage of the law, and gave public notice of it. It did not appear that it was known to the master or owners of the vessel prior to her sailing. Having been seized for a violation of the law, the court decreed her restoration. The Cotton Planter, 1 Paine's C. C. R. 23. 35. Under the act of January 9, 1808, ch. 112, supplementary to the embargo act, the vessel cannot be proceeded against for a forfeiture, after she has completed her outward voyage, by entering into her foreign port of destination. At that period, the right to sue for the double value attaches, which is a substitute for the vessel herself. Parker v. The United States, 2 Wash. C. C. R. 361. 36. To excuse a vessel, which has sailed under an embargo bond, from relanding her cargo within the United States, within the clause of the condition, "the perils of the seas only excepted;" the accident must happen without any fault or negligence of the master, and must occur at sea; or if at land, it must be the immediate and necessary consequence of the peril happening at sea. United States v. Hall et al., 2 Wash. C. C. R. 336. 37. The party, to excuse himself from the consequences of a breach of the embargo laws, should show that he did everything in his power to comply with the law; and that the vessel was sufficiently found, &c., to perform the voyage. If it appear that she was not sufficiently ballasted, and, particularly, if this defect was ascer tained to exist at a time when it could have been remedied; the party cannot avail himself, as an excuse, of any necessity resulting from Embargo and Non-Intercourse. such construction should be absolutely unavoid- | she might land her cargo. T able. Ibid. 3. In an action of debt for the penalty of an embargo bond, it is a good plea, under the act of congress of the 12th of March, 1808, sec. 3, that the party was prevented from relanding the goods in the United States by unavoidable acci-a dent. Durousseau v. The United States, 6 Cranch, 307; 2 Cond. Rep. 380. The United States, 7 Cran 12. Wines, the pro 4. It was no offence against the embargo law to take goods out of one vessel and put them into another in the port of Baltimore, unless it be with an intent to export them. Ibid. 5. The evidence of that necessity which will excuse a violation of the embargo laws must be very clear and positive. Brig James Wells v. The United States, 7 Cranch, 21; 2 Cond, Rep. 402. 6. The departure of a vessel from the wharf of a port, and proceeding a mile and a half 2 therefrom, with intent to go to sea, is not a departure from the port, within the meaning of the third section of the supplementary embargo of January 9th, 1808, if the vessel had not tually gone out of the port before seizure. S' Active v. The United States, 7 Cranch, 10/ Cond. Rep. 431. 7. A licensed fishing vessel is liable feiture, under the thirty-second sectio act of the 18th of February, 1793, for and licensing vessels, for sailing, 1 goods, with intent to carry them place, without a license therefor; goods are wholly of domestic grov facture, and not liable to any d cargo is not liable to forfeiture to the master, owner, or a mar Ibid. ac 0 shed by fine and impri embargo act of 1809, ch. 72, in repeal, by the saving clause section of the act of June, 1809, d States v. Mann, 2 Gallis. C. C. R. he circuit court has cognizance of such ence. Ibid. 2. The assignment of breaches in an action pon an embargo bond, is a part, and a very important part of the declaration; and upon le demurrer to the declaration, the plaintiff's at rict, torney will not be permitted to strike out the insur-assignment of breaches, on the ground that the were sea- declaration is good without it. Such a course de was des- would not be tolerated in any court. Willm be proved by Dixon et al. v. The United States, 1 Brockenb. cient causes for C. C. R. 177. xc., can be proved. pears. Ibid. 8. A vessel which has pr port, contrary to the embar 1808, is liable to be seize though that act gives value in case she sho nst the brig Agnes, a 53. A variance between the declaration and bond, is an erroneous description of the instru ment referred to, so that it does not appear to be United States v. The B breach of the embargo the same, when produced in evidence, either on 9. Upon an indieeded from the United oyer, or at the trial. Ibid. Cond. Rep. 437. course laws for put afterw citize Dan a 10 1808, to St. Bartholomew, 54. A bond, made payable to "The United the appellant, and after- States of America," would, it seems, be binding Philadelphia with a cargo. A at common law, for "The United States of el, imposed by the embargo America," are a corporation endowed with the forced after she has arrived capacity to sue, and be sued, to convey and rection of a foreign power; but ceive property. Ibid. must then resort to the penalthose laws, and proceed for 55. An embargo bond, made payable to the United States, is good, though the act directed alue of the vessel and cargo, to that the master, &c., should give bond to the are entitled upon their violation. collector of the district from which the vessel United States, 2 Wash. 361. was bound to depart; the proper construction of bvious intention of the legislature that act requiring, that the bond should be taken ed States, by the non-intercourse by the collector, but made payable to the United States. Ibid. 178. prohibit the American citizens and om a commerce with foreign coun- 56. A clause was inserted in an embargo bond, Sally and Cargo, 1 Gallis. C. C. R. 58. not authorized by the statute, and a condition no time was it illegal for a foreign was omitted which the statute directed to be depart from the United States in bal-inserted. It seems: 1. That a statutory s that contains more than the statute requires us probandi rests on the claimant set- not vitiated by the surplus matter; but the special defence. The Short Staple, 1 court will reject the surplusage, as a mere rul C. C. R. 104. lity, and construe the bond as if such surplus A registered vessel was within the prohi-matter were not contained in it. 2. That a sta |